Citation Nr: 0909176
Decision Date: 03/12/09 Archive Date: 03/26/09
DOCKET NO. 05-09 299 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Whether new and material evidence has been received with
which to reopen a service connection claim for a psychiatric
disorder, claimed as bipolar disorder.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
3. Entitlement to service connection for dizziness and
headaches claimed as secondary to head trauma.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Counsel
INTRODUCTION
The Veteran had active service from July 1991 to August 1997.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from March and June 2004 decisions of the
Department of Veterans Affairs (VA) Atlanta, Georgia,
Regional Office (RO).
In November 2008, the Veteran testified at a travel Board
hearing held before the undersigned Veterans Law Judge (VLJ).
A transcript of the hearing is of record.
FINDINGS OF FACT
1. An April 2002 rating decision denied service connection
for a psychiatric disorder (other than PTSD); that decision
was not appealed and became final.
2. Evidence added to the record since the April 2002 rating
decision when viewed by itself or in the context of the
entire record, does not relate to an unestablished fact, nor
does it raise a reasonable possibility of substantiating the
claim of entitlement to service connection for a psychiatric
disorder.
3. The evidence on file does not include a diagnosis of PTSD
made in accordance with the provisions of the fourth edition
of the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV).
4. The Veteran's alleged in-service stressors have not been
verified and are not capable of verification due to lack of
sufficient detail.
5. The evidence on file does not include a current diagnosis
of dizziness and/or headaches, or of any disorder primarily
manifested by dizziness and/or headaches.
CONCLUSIONS OF LAW
1. The April 2002 rating decision which denied service
connection for a psychiatric disorder (other than PTSD) is
final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.104 (2008).
2. Evidence received subsequent to the April 2002 rating
decision relating to the service connection claim for a
psychiatric disorder is not new and material, and the claim
is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp.
2008); 38 C.F.R. § 3.156(a) (2008).
3. PTSD was neither incurred in nor aggravated by active
military service; and cannot be presumed to have been
incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2008).
4. Claimed conditions characterized as dizziness and
headaches were not incurred or aggravated during military
service nor are they secondary to any service-connected
disorder. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002
& Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duties To Notify And Assist
In accordance with the Veterans Claims Assistance Act of 2000
(VCAA), notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable RO
decision on a claim for VA benefits. Pelegrini v. Principi,
18 Vet. App. 112 (2004). The notice must (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; and (3) inform the claimant about the information
and evidence the claimant is expected to provide. The Board
notes that 38 C.F.R. § 3.159 was revised, effective May 30,
2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).
The notice requirements of 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) apply to all five elements of a service
connection claim. Those five elements include: 1) veteran
status; 2) existence of a disability; 3) a connection between
the veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon
receipt of an application for a service-connection claim, 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate
the elements of the claim as reasonably contemplated by the
application. Additionally, this notice must include notice
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded.
Concerning applications to reopen claims that have been the
subject of a prior final denial by VA, nothing pertaining to
the duty to assist claimants shall be construed to require VA
to reopen a claim that has been disallowed except when new
and material evidence is presented or secured. 38 U.S.C.A. §
5103A (f). To provide adequate notice with regard to a claim
to reopen, VA must look at the bases for the denial in the
prior decision and respond with a notice letter that
describes what evidence would be necessary to substantiate
the element or elements required to establish service
connection that were found insufficient in the previous
denial. Kent v. Nicholson, 20 Vet. App. 1, 10 (2006).
In this case, the Board concludes that the notice
requirements of the VCAA have been satisfied with respect to
the claims on appeal being addressed in this decision. The
Board observes that the Veteran was informed of the relevant
law and regulations pertaining to his application to reopen
the service connection claim for a psychiatric disorder in a
November 2003 letter from VA. This letter informed the
Veteran his service connection claim on appeal had been
previously denied in a final decision, and that in order for
VA to reopen and reconsider his claim, he must submit "new
and material evidence." Specifically, he was advised that
new evidence consists of evidence in existence that has been
submitted to the VA for the first time. Material evidence
was explained as additional information that must relate to
an unestablished fact necessary to substantiate your claim.
The letter further informed the Veteran that new and material
evidence must raise a reasonable possibility of
substantiating the claim. With regard to describing what
evidence would be necessary to substantiate the element or
elements required to establish service connection that were
found insufficient in the previous denial, the letter advised
the Veteran that VA needed evidence showing that the
condition previously denied existed from military service to
the present time or was otherwise related to service.
Accordingly, the Board concludes that this satisfied the
notice requirement with regard to the application to reopen
the previously denied claim for a psychiatric disorder.
Kent, 20 Vet. App. at 10.
The RO also informed the Veteran of VA's duty to assist him
in the development of evidence pertinent to his claims in a
letter issued in March 2004 (PTSD, dizziness and headaches),
wherein the Veteran was advised of the provisions relating to
the VCAA. Specifically, the Veteran was advised that VA
would assist him with obtaining relevant records from any
Federal agency, which may include medical records from the
military, from VA hospitals (including private facilities
where VA authorized treatment), or from the Social Security
Administration. With respect to private treatment records,
the letters informed the Veteran that the VA would make
reasonable efforts to obtain private or non-Federal medical
records, to include records from State or local governments,
private doctors and hospitals, or current or former
employers. Furthermore, the VA included copies of VA Form
21-4142, Authorization and Consent to Release Information,
which the Veteran could complete to release private medical
records to the VA. In addition, stressor development letters
were issued to the Veteran in 2006 and 2007 in conjunction
with his PTSD claim.
The Veteran did not receive notice specifically addressing
the assignment of disability ratings and effective dates.
Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, as
all of the service connection claims addressed herein are
being denied the matter is moot and this lack of notice is
entirely non-prejudicial. See Bernard v. Brown, 4 Vet. App.
384 (1993).
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate claims for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claims. See 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2008). The Veteran's service
treatment records (STRs) and service personnel records (SPRs)
have been obtained as well as identified VA and private
treatment records. Statements and hearing testimony from the
Veteran are also on file.
VA has no specific duty to conduct an examination with
respect to the claim for a psychiatric disorder requiring new
and material evidence because the duty under 38 C.F.R. §
3.159(c)(4) applies to a claim to reopen only if new and
material evidence is presented or secured. Paralyzed
Veterans of America v. Secretary of Veterans Affairs, 345
F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide
a medical examination or medical opinion until a claim is
reopened). See also Woehlaert v. Nicholson, 21 Vet. App. 456
(holding that adequacy of VA medical examination mooted upon
Board's determination that claimant not entitled to reopening
of claim, and conduct of VA medical examination, when
claimant had not presented new and material evidence.)
A VA examination PTSD evaluation was conducted in 2003.
There has been no VA examination conducted in conjunction
with the Veteran's claimed headaches and dizziness. In this
circumstance, there is no duty on the part of VA to provide a
medical examination, because as in Wells v. Principi, 326
F.3d 1381 (Fed. Cir. 2003), the Veteran has been advised of
the need to submit competent medical evidence indicating that
he has the disorder in question, and further substantiating
evidence suggestive of a linkage between his active service
and the current disorder, if shown. The Veteran has not done
so, and no evidence thus supportive has otherwise been
obtained. Here, as in Wells, the record in its whole, after
due notification, advisement, and assistance to the Veteran
under the VCAA, does not contain competent evidence to
suggest that the Veteran has a current disorder manifested by
headaches and/or dizziness that is related to his active
service. Given these matters of record, there is no
competent evidence that "the disability or symptoms may be
associated with the claimant's active military . . .
service." 38 U.S.C.A § 5103A(d); cf. Charles v. Principi, 16
Vet. App. 370 (2002). Under such circumstances, there is no
duty to provide an examination or to obtain an additional
medical opinion as to this claim. Id.
Accordingly, the Board finds that under the circumstances of
this case, VA has satisfied the notification and duty to
assist provisions of the VCAA and that no further actions
need be undertaken on the Veteran's behalf. All appropriate
due process concerns have been satisfied. See 38 C.F.R. §
3.103 (2008).
Factual Background
The Veteran served with the United States Army and his
military occupation was listed as a cargo specialist. The
Veteran's personnel records indicate that he had duty in an
area of imminent danger in Somalia from January to April 1993
and in Haiti in September 1994.
The STRs are entirely negative for any reference of
complaints, treatment or a diagnosis of a psychiatric nature.
Records dated in February 1997 reflect that the Veteran was
involved in a motor vehicle accident when his car was hit
from behind, following which he complained of headaches, neck
and back pain. Later that month when the Veteran was seen
for a follow up; headaches and whiplash secondary to a motor
vehicle accident were diagnosed. Headaches were noted again
in records dated in late February 1997 and mid-March 1997.
On a report of medical history completed by the Veteran in
April 1997 he gave a history of frequent or severe headaches,
a head injury, depression or excessive worry and nervous
trouble.
A VA examination was conducted in November 1997 at which time
the Veteran had no complaints of a psychiatric nature and had
no complaints of headaches or dizziness. VA medical records
dated in 1998 were similarly negative.
VA records reflect that the Veteran was hospitalized in March
1999 for a diagnosed psychotic disorder (unspecified). The
history indicated that the Veteran had been hospitalized in
February 1999 for treatment of psychosis, reportedly
occurring after he used some kind of nutritional product in
the form of a protein shake or pill. The report indicated
that the Veteran had no direct combat exposure during service
and endorsed no PTSD symptoms at that time.
VA records include an August 2000 entry documenting the
Veteran's complaints of back pain and headache.
Private medical records dated in 2000 reflect that the
Veteran was involuntarily hospitalized from September to
November 2000 following hostile and threatening behavior.
The discharge summary indicated that the Veteran had a
history of using a dietary supplement that contained some
stimulants, creating a similar effect to amphetamines and it
was noted that he was still possibly using this product.
Severe bipolar disorder with psychotic features was
diagnosed.
In July 2001, the Veteran filed a service connection claim
for a psychiatric disorder. By rating action issued in April
2002, service connection was denied for bipolar disorder.
The RO reasoned that no evidence had been presented showing
that this condition had been incurred in or was caused by
military service. The Veteran was notified of that decision
in April 2002 and did not appeal it.
The Veteran filed to reopen the service connection claim for
a psychiatric disorder in September 2003.
VA records dated from in 2002 and 2003 reflect that the
Veteran continued to be treated for bipolar disorder. In
July and August 2003, he underwent a PTSD evaluation. The
Veteran identified the following military stressors occurring
during his period of service from 1991 to 1997, including
service in Somalia and Haiti: (1) coming under attack by
mortar fire while sleeping in a warehouse; (2) being under
fire while on guard duty; (3) being under small arms fire
while travelling outside the secure area; (4) seeing a close
friend get killed. The evaluation was equivocal for PTSD due
to factors including inconsistent findings and indications of
malingering. As a result, the Veteran was seen in September
2003 to continue the PTSD evaluation and at that time it was
found that a PTSD diagnosis was not supported in part because
the Veteran's reported stressors only minimally - if at all,
met the a portion of the PTSD criteria.
On examination of the sinuses conducted in November 2003, the
Veteran reported having occasional headaches. Sinusitis and
rhinitis were diagnosed.
VA records dated from 2004 to 2007 reflect that the Veteran
continued to be treated for paranoid schizophrenia and failed
to include a diagnosis of PTSD.
In a rating action issued in March 2007, service connection
for head trauma was denied.
In March 2007, the Veteran provided a stressor statement
describing the following stressors: 1) coming under attack by
mortar fire while sleeping in a warehouse in March 1993 in
Mogadishu; 2) the suicide of a friend (specifically named) at
Fort Eustis in October 1993; (3) being hit with a steel bar
in Haiti in September 1994 causing a fracture of the leg; and
(4) being involved in a car accident in Virginia in February
1997. In correspondence issued by VA late in March 2007 and
in May 2007, the Veteran was requested to provide additional
details about these events. No response was received.
In November 2007, the VA Joint Services Records Research
Center (JSSRC) Coordinator issued a memorandum documenting
that a formal finding had been made that insufficient
information had been provided to allow for verification of
the Veteran's reported stressors. The memorandum noted that
the Veteran had been contacted by letters issued in March and
May 2007 requesting additional details relating to the
reported stressors, for which no response was received.
The Veteran provided testimony at a travel Board hearing held
in November 2008. He reported that headaches and dizziness
were secondary to head trauma sustained in service as a
result of a 1997 car accident and due to a mortar attack
which occurred while the Veteran was stationed in Somalia.
The testimony also indicated that PTSD was diagnosed in 2008.
The record was left open for 60 days following the hearing to
allow for the submission of additional evidence.
Additional evidence was provided for the record with a waiver
in January 2009. This evidence was largely duplicative, but
included a VA record dated in January 2008 containing a
mental health progress note showing that the Veteran reported
having been diagnosed with PTSD and reflecting that paranoid
schizophrenia and PTSD were assessed.
Legal Analysis
The veteran maintains that service connection is warranted
for a psychiatric disorder other than PTSD, for PTSD, and for
headaches and dizziness primarily claimed as attributable to
head trauma sustained in service.
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110. For the showing of
chronic disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time.
38 C.F.R. § 3.303(b). If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Id. Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Service incurrence will be presumed for certain chronic
diseases, such as psychoses, if they are manifest to a
compensable degree within the year after active service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309. A personality disorder is not a disease for
compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9, 4.127.
In order to establish direct service connection for a claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999). The determination as to whether these requirements
are met is based on an analysis of all the evidence of record
and the evaluation of its credibility and probative value.
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Analysis
A. New and Material - Psychiatric Disorder
The Veteran is seeking to reopen the claim of entitlement to
service connection for a psychiatric disorder (other than
PTSD) which was previously and most recently denied in a
rating action issued in April 2002, which was not appealed
and became final.
Generally, a final rating decision or Board decision may not
be reopened and allowed, and a claim based on the same
factual basis may not be considered. 38 U.S.C.A. § 7105.
Under 38 U.S.C.A. § 5108, if new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim."
"New and material evidence" means evidence not previously
submitted to agency decision makers which, by itself or in
connection with evidence previously included in the record,
relates to an unestablished fact necessary to substantiate
the claim. Such evidence must also raise a reasonable
possibility of substantiating the claim. See 38 C.F.R. §
3.156(a).
To reopen a previously disallowed claim, new and material
evidence must be presented or secured since the last final
disallowance of the claim on any basis, including on the
basis that there was no new and material evidence to reopen
the claim since a prior final disallowance. See Evans v.
Brown, 9 Vet. App. 273, 285 (1996). For purposes of
reopening a claim, the credibility of newly submitted
evidence is generally presumed. See Justus v. Principi, 3
Vet. App. 510, 513 (1992) (in determining whether evidence is
new and material, "credibility" of newly presented evidence
is to be presumed unless evidence is inherently incredible or
beyond competence of witness).
With respect to the service connection claim for a
psychiatric disorder, after reviewing the record, the Board
finds that the additional evidence received since the final
April 2002 rating decision is not new and material within the
meaning of 38 C.F.R. § 3.156(a). The April 2002 final rating
decision denied service connection for bipolar disorder on
the basis that there was no evidence showing that the
Veteran's psychiatric disorder had been incurred in, or was
caused by, active military service. Essentially, the
evidence received since the April 2002 final rating decision
fails to include evidence of service incurrence of a
psychiatric disorder and competent medical evidence or
opinion etiologically linking a currently diagnosed
psychiatric disorder to service or any incident therein.
Accordingly, there has been no evidence received since the
April 2002 rating decision, which by itself or in conjunction
with previously considered evidence, relates to an
unestablished fact necessary to substantiate the service
connection claim or raises any reasonable possibility of
substantiating the claim.
Specifically, the record still lacks any evidence which
reflects that the Veteran has a psychiatric disorder which
was diagnosed in-service or during the first post service
year. Medical records reflect that a psychiatric disorder
was first diagnosed in 1999. Hence, service-incurrence is
not established by the newly presented evidence.
Moreover, the evidence presented for the record since the
2002 rating decision pertains to current complaints,
symptomatology and on-going treatment for a psychiatric
disorder without reference to an etiological relationship to
service. In Morton v. Principi, 3 Vet. App. 508 (1992), the
Court held that medical records merely describing the
Veteran's current condition are not material to the issue of
service connection and are not sufficient to reopen a claim
for service connection based upon new and material evidence.
In a related case, the Court held that medical evidence which
merely documents continued diagnosis and treatment of
disease, without addressing the crucial matter of medical
nexus (i.e., a connection to an in-service event), does not
constitute new and material evidence. See Cornele v. Brown,
6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277,
280 (1994).
The Veteran's statements and contentions regarding his
opinion that an etiological relationship exists between a
claimed psychiatric disorder and service (to include any
incident therein) are essentially cumulative and redundant of
contentions made prior to the 2002 rating decision, and thus
are not new. 38 C.F.R. § 3.156(a); Vargas-Gonzales v. West,
12 Vet. App. 321 (1999). Moreover, as a layman, the Veteran
lacks the competence to provide a probative opinion on the
medical diagnosis or etiology of his currently claimed
condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5
(1992). In Moray v. Brown, 5 Vet. App. 211, 213 (1993), the
Court opined that lay assertions of medical causation cannot
serve as the predicate to reopen a claim under 38 U.S.C.A. §
5108.
Accordingly, the Board finds that the evidence presented
subsequent to the April 2002 rating decision is not "new and
material" as contemplated by 38 C.F.R. § 3.156(a), and
provides no basis to reopen the Veteran's service connection
claim for a psychiatric disorder. 38 U.S.C.A. § 5108.
Because the Veteran has not fulfilled the threshold burden of
submitting new and material evidence to reopen his finally
disallowed claim, the benefit-of-the-doubt doctrine is not
applicable and the claim remains denied. See Annoni v.
Brown, 5 Vet. App. 463, 467 (1993).
B. Service Connection - PTSD
The Veteran seeks service connection for PTSD. Service
connection for PTSD in particular requires: (1) medical
evidence diagnosing the condition in accordance with the
American Psychiatric Association's Diagnostic and Statistical
Manual of Medical Disorders (4th ed. 1994) (DSM-IV), (2)
credible supporting evidence that the claimed in-service
stressors actually occurred, and (3) a link, established by
medical evidence, between the current symptomatology and the
claimed in-service stressor(s). See 38 C.F.R. § 1154(b); 38
C.F.R. §§ 3.304(f), 4.125(a); see also Cohen v. Brown, 10
Vet. App. 128, 137-138 (1997).
The diagnostic criteria, including those related to
stressors, set forth in the DSM-IV for mental disorders have
been adopted by the VA. 38 C.F.R. § 4.125. The DSM-IV
provides two requirements to support a diagnosis of PTSD: (1)
A person must have been "exposed to a traumatic event" in
which "the person experienced, witnessed, or was confronted
with an event or events that involved actual or threatened
death or serious injury, or a threat to the physical
integrity of self or others;" and (2) "the person's response
[must have] involved intense fear, helplessness, or horror."
DSM-IV at 209. See also Cohen v. Brown, 10 Vet. App. 128
(1997). These criteria are no longer based solely on usual
experience and response but are individualized (geared to the
specific individual's actual experience and response).
The Veteran's STRs are entirely negative for a diagnosis of
PTSD as are post-service medical records dated from 1997
(when the Veteran was discharged from service) to 2007. In
2003 the Veteran underwent an evaluation to specifically
assess whether the DSM-IV criteria for a PTSD diagnosis were
met and it was determined that they were not.
However, certain medical records dated in 2008 contain an
assessment that simply states "PTSD." However, the Board
concludes that this reference does not represent a medical
diagnosis of PTSD made in accordance with the DSM-IV. In the
first instance, the assessment of PTSD was signed by two
nurses not a physician, psychiatrist, or psychologist.
Moreover, this assessment appears to be based on a history
provided by the Veteran, who reported that PTSD had
previously been diagnosed. There is no indication that any
testing or evaluatory criteria generally used to diagnose and
identify PTSD was undertaken and there was no identification
of any particular service-related traumatic event/stressor
and no description of a response to that event described
which supports the "assessment" of PTSD made in 2008 (other
than a general reference to combat exposure in Somalia in
1993). In summary, a clear preponderance of the evidence is
against a finding that the Veteran has a diagnosis of PTSD
made in accordance with DSM-IV.
The law limits entitlement for service-related diseases and
injuries to cases where the underlying in-service incident
has resulted in a current disability. Degmetich, 104 F. 3d
at 1332; Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
Thus, because the evidence shows that the Veteran does not
currently have a current diagnosis of PTSD made in accordance
with the DSM-IV; service connection for this claimed disorder
is not warranted upon this basis alone.
The Board also notes that even if a DSM-IV diagnosis of PTSD
was of record, service connection would nevertheless be
unwarranted.
Although the Board recognizes that the Veteran had verified
services in areas of imminent danger (Somalia from January to
April 1993) and (Haiti in September 1994), and the Veteran
maintains that he engaged in combat with the enemy, the
Veteran's DD Form 214 does not show that he received any
commendations or decorations typically awarded primarily or
exclusively for circumstances related to combat, such as the
Combat Infantryman Badge, Purple Heart, or any other similar
citation. Instead, the Veteran's DD Form 214 indicates that
his primary military occupational specialty (MOS) was cargo
specialist. Accordingly, combat service is not established.
In this case, there is no verified stressor to serve as a
basis for granting the Veteran's PTSD claim. He makes claims
of (1) coming under attack by mortar fire in March 1993 in
Mogadishu while sleeping in a warehouse; (2) being under fire
while on guard duty; (3) being under small arms fire while
travelling outside the secure area; (4) seeing a close friend
get killed, apparently due to a suicide which occurred in
October 1993 at Fort Eustis.
However, he has not provided the details required to allow
for a meaningful attempt to verify these purported stressors.
VA is not obligated to verify stressors that are too vague.
Indeed, the claimant must provide, at a minimum, a stressor
that can be documented, the location of where the incident
occurred, the approximate date within 2 months, and the unit
of assignment. M21-1MR, Part IV.ii.1.D.14.d. In this
respect, the Veteran has not furnished specific stressor
details such as names, dates and locations as was requested
by the RO in letters to the Veteran issued in March and May
2007, to which he did not respond. In November 2007, the VA
JSSRC Coordinator issued a memorandum documenting that a
formal finding had been made that insufficient information
had been provided to allow for verification of the Veteran's
reported stressors
The record does not contain a DSM-IV diagnosis of PTSD, does
not establish that the Veteran engaged in combat, and there
has been insufficient information provided by the Veteran to
warrant an attempt at verification of his reported stressors
and hence they remain unverified. As these essential
elements of a service connection claim for PTSD have not been
established, the Veteran's claim must be denied.
Accordingly, service connection for PTSD must be denied. In
reaching this decision, the Board considered the doctrine of
reasonable doubt; however, as the preponderance of the
evidence is against the appellant's claim, the evidence as to
that issue is not so evenly balanced so as to allow
application of the benefit-of- the-doubt rule. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38
C.F.R. § 3.102 (2008).
C. Service Connection - Headaches and Dizziness
With respect to conditions claimed as dizziness and headaches
for which the Veteran seeks service connection, regardless of
the theory of entitlement, the evidence on file does not
contain current clinical diagnoses of the aforementioned
conditions, or a diagnosis of any condition primarily
manifested by these claimed conditions and/or symptoms.
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the
Court's interpretation of sections 1110 and 1131 of the
statute as requiring the existence of a present disability
for VA compensation purposes cannot be considered arbitrary
and therefore the decision based on that interpretation must
be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed.
Cir. 1998).
The requirement that a current disability be present is
satisfied when a claimant has a disability at the time a
claim for VA disability compensation is filed or during the
pendency of that claim, even if the disability resolves prior
to the adjudication of the claim. See McClain v. Nicholson,
21 Vet. App. 319 (2007). In this case, the service
connection claim for headaches/dizziness was filed in January
2004. No diagnosis or clinical evidence of dizziness or
headaches was of record at that time, (resolved or
unresolved) nor has such been presented at any time
subsequently since the claims have been pending.
To the extent that any symptoms of headaches are documented
in the post-service records (2000 and 2003), this condition
does not exist independently as clinically diagnosed disorder
which is separate and distinct from service-connected
sinusitis. In this regard, headaches are one of the
enumerated criteria which support the assignment of a
compensable percent rating under the rating criteria for
sinusitis. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514.
Thus, that symptom is already included as part of the
disability picture as relates to the Veteran's service-
connected sinusitis, and assists in supporting the currently
assigned 10 percent evaluation for that condition, evaluated
under code 6513. Accordingly, this manifestation cannot be
independently rated and compensated under a different
diagnostic code. See 38 C.F.R. § 4.14.
The Board also observes that it was specifically claimed that
headaches and dizziness were incurred secondary to head
trauma sustained in service. However, service connection is
not in effect for head trauma or TBI (traumatic brain injury)
and service connection for head trauma/TBI was specifically
denied in a rating action issued in March 2007, which was not
appealed and is now final. Accordingly, secondary service
connection under 38 C.F.R. § 3.310 is not even a viable
theory of entitlement as to these claims.
In summary, the law limits entitlement for service-related
diseases and injuries to cases where the underlying in-
service incident has resulted in a current disability.
Degmetich, 104 F. 3d at 1332; Rabideau v. Derwinski, 2 Vet.
App. 141 (1992). Thus, because the evidence on file is
entirely negative for a current diagnosis or clinical
evidence of dizziness or headaches standing as an independent
disability, service connection for these claimed conditions
is not warranted. The preponderance of the evidence being
against the claim, the appeal is denied.
ORDER
New and material evidence not having been received, the
service connection claim for a psychiatric disorder is not
reopened and remains denied.
Entitlement to service connection for PTSD is denied.
Entitlement to service connection for dizziness and headaches
is denied.
____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs